Clerical error may leave door open to Uxbridge asphalt plant

A clerical failure to record a 1995 zoning bylaw amendment to prohibit asphalt plants has caused an uproar among residents as the Planning Board considers a proposed asphalt manufacturing facility.

Residents have taken to social media and online petitions expressing concerns about health and environmental risks. At the same time, town officials are scratching their heads about why the vote prohibiting asphalt plants wasn't written into the books and what the implications are for the legality of current bylaws.

Medway resident Steven Bevilacqua, project owner of Evergreen Development, has proposed building a hot-mix asphalt manufacturing facility on 5.76 acres at 586 Quaker Highway. The project is the topic of a special permit hearing before the Planning Board at 7 p.m. Wednesday.

Under current zoning bylaws, the proposal would appear to be eligible through a special permit from the Planning Board. But some residents who remember the contentious debate and vote 18 years ago disagree.

Town Manager Sean Hendricks said he planned to ask town counsel for an opinion about the bylaw conflict.

At a special town meeting on June 19, 1995, residents voted 162-10 to amend the zoning bylaws by prohibiting “bituminous asphalt batching and/or mixing/manufacturing plants and/or bituminous asphalt mixing/manufacturing equipment, machinery, structures and buildings related to the manufacture thereof.”

A letter from the state attorney general's office dated Aug. 30, 1995, records certification of the amendment.

A 2008 zoning bylaw recodification committee, which attempted to clean up bylaws to comply with state laws, also did not incorporate the asphalt plant prohibition.

Voters at the Nov. 15, 2011, town meeting, in an effort to encourage business and update old bylaws that referenced blacksmith shops in industrial uses, approved zoning bylaws that allowed manufacturing in industrial zones with a special permit from the Planning Board.

In the same motion, voters approved a definition of a manufacturing establishment as: “any business the primary function of which is the assembly, fabrication, processing and reprocessing of materials, that is not dangerous by reason of fire, explosion, or other hazards, and does not produce excessive dust, odors, gas, smoke, vibration, noise or electromagnetic interference, and which would not be detrimental to the neighborhood or the town of Uxbridge.

Mr. Hendricks said he believed the 2011 bylaws would have included the 1995 prohibition on asphalt manufacturing if the 1995 amendment had made it into the books. He said there was no action to specifically remove asphalt manufacturing from the prohibited uses.

Jennifer L. Gallo, an Uxbridge resident and veterinarian, initiated an online petition opposing the current project proposal, claiming that town meeting voters in 2011 were not informed they were voting to remove asphalt manufacturing as a prohibited use. As of yesterday afternoon, 113 people had signed the petition.

In a letter written Dec. 29 to Uxbridge Town Counsel Patrick J. Costello, Joseph Frisk, another opponent of the proposed plant, wrote: “There was no direct action to repeal this lawfully passed prohibited use bylaw and therefore this bylaw was not lawfully repealed.”

Dr. Gallo, who owns a local veterinary practice, said she's not anti-business, “but we want transparent business and industry that poses no risk to the community.”

She cited reports from the U.S. Environmental Protection Agency and the U.S. Department of Health and Human Services, among other organizations, that found asphalt plants release large amounts of chemicals into the air, including cancer-causing pollutants such as arsenic, benzene, formaldehyde and cadmium.

Other toxic chemicals released while asphalt is loaded into trucks include volatile organic compounds, polycyclic aromatic hydrocarbons and very fine condensed particulates.

Dr. Gallo said she was concerned that the proposed plant was less than a mile from the new high school and would sit near the Rosenfeld Well area, a town water supply. She also questioned safety precautions if a fire were to break out, releasing potentially toxic emissions.

The proposed project has received an air quality permit from the state Department of Environmental Protection. Regulators said they determined that the installation, maintenance and operation of the facility would be in compliance with all air quality regulations.

Executive Office of Energy and Environmental Affairs spokesman Reggie Zimmerman said the secretary does not have any further application material about the project. He said it might not require review under the Massachusetts Environmental Policy Act, which is required for large projects that could substantially alter the environment.

Mr. Bevilacqua said he is investing $3.5 million to $4 million in the project and looked at several towns and read their bylaws before submitting a proposal to Uxbridge. The question about unrecorded prohibited uses in the zoning bylaws was “all new to me,” he said in an interview.

Mr. Bevilacqua said he is proceeding because asphalt production is not prohibited under Uxbridge's bylaws.

He selected the site because of its strategic location just off Route 146.

Mr. Hendricks said Mr. Bevilacqua discussed his proposal with him, the chairman of the Board of Selectmen, the chairman of the Planning Board and the building inspector in September.

The 1995 bylaw amendment prohibiting asphalt plants was not brought to light until the application was presented to the Planning Board in December.

He said that while local reaction ranges from frustration over a scrivener's error on the part of the town to talk of conspiracy that someone was waiting in the wings to develop a plant when the 2011 bylaws were passed, “We want the right thing to come out here. We're not looking at this as an adversarial process.”

Contact Susan Spencer by email at susan.spencer@telegram.com. Follow her on Twitter @SusanSpencerTG.

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